The Delhi High Court has held that there is no absolute right to cross-examine witnesses under Section 138(B) of Customs Act.
The bench of Justice Prathiba M. Singh and Justice Dharmesh Sharma has observed that in order to ensure that there is compliance of Section 138(B) of the Act, though the same cannot be claimed as an unfettered right in all cases, in the facts of the present case, both Mr. Sushil Aggarwal and Mr. Aidasani are afforded an opportunity to cross examine Mr. Bhalla. The said cross examination shall be fixed on one particular date and the cross examination shall be concluded on the same date or one more date. No further adjournments or opportunities for cross examination shall be given.
The Appellants/assessee, Sushil Aggarwal and Principal Commissioner of Customs (Import) New Delhi challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
The order has also been challenged by the Appellant, Sushil Aggarwal as CESTAT dismissed its appeal and upheld the penalties imposed on him under Sections 112 and 114 A of the Customs Act, 1962.
The Principal Commissioner in CUSAA 38/2025 has filed an appeal against the order dated 30th April, 2024, as CESTAT allowed the appeal filed by the Respondent, Sunil Aidasani @ Vicky in the same final order by which the penalties imposed as per order in original was set aside. The CESTAT also observed that a statement made by Mr. Bhalla under Section 108 of the Customs Act will be relevant to prove the case as per Section 138B of the Act and thus the person should be cross examined.
The court noted that the CESTAT has followed a curious course where in respect of one of the Appellants, despite the right of cross examination having not been given, the penalty has been upheld and the appeal has been dismissed by CESTAT. However, in case of the other party i.e., Sunil Aidasani, the exact opposite approach has been adopted by CESTAT in the same case. Such discrimination between two similarly placed persons would not be possible.
The court held that upon the right to cross examination being afforded, the authority shall proceed to adjudicate the matter in accordance with law only qua these two Appellants.
Case Details
Case Title: Sushil Aggarwal Versus Principal Commissioner Of Customs
Case No.: CUSAA 35/2025 & CM APPL. 2882/2025
Date: 4th February, 2025
Counsel For Appellant: Mr. Pradeep Jain, Mr. Shubhankar Jha & Mr. Sambhav Jain, Advs.
Counsel For Respondent: Ms. Anushree Narain, SSC
